4.  The applicant was born in 1978 and lives in Virovitica.
5.  At some time in 2002 an investigation was opened before the Virovitica County Court (Županijski sud u Virovitici) concerning an allegation of indecent act against a minor (a girl of twelve). On 22 April 2003 the applicant was heard by an investigating judge. He was informed of his right to be legally represented, but chose to represent himself. On 3 May 2002 the alleged victim, M.V., gave evidence before an investigating judge in the presence of a psychologist. The applicant, who at this stage was not represented by a lawyer, was not present. The Government submitted a copy of the court's summons sent to the applicant. The transcript of the hearing before the investigating judge shows that the applicant was not present, without further comments on the reasons for his absence. The transcript of M.V.'s testimony reads as follows:
“One day my parents sent me to see Tomo Kovač [the applicant] to get cigarettes and our bicycle, which we had lent to Tomo. I went to Tomo's house. I was wearing underwear, tights, trousers and a T-shirt. I do not remember exactly when all this happened. When I arrived at Tomo's house I spent some time in his father Feri's workshop. Then Tomo came and took me to his flat. His wife Danijela and their son Željko were there. Tomo told me straight away that we had to go into a room and that he was going to examine me. I did not want to go into the room and Tomo hit me twice with a wooden spoon on my hands and shoulder. His wife, Danijela, told him not to hit me and Tomo hit her hands with the spoon too. Tomo also hit his son, Željko. Then he took me by the hand and led me to the room, where we were alone. He took off my trousers, tights and underwear and threw me on a bed. I was lying on my back and Tomo was touching me with his hand on the upper part of my body over my T-shirt. Afterwards he also touched my genitals, and he did that for some time. Then he told me that I should not tell anyone about it. I cannot say how long it lasted. Tomo then told me to get dressed, which I did, and then we left the room and went back to the kitchen, where we joined Danijela and Željko. Tomo had touched my genitals with his hand, but he had not put his finger inside me. When we returned to the kitchen, Tomo gave me some money and told me to buy myself something and go home. He also said that he would not give me the cigarettes because I might lose them on my way home. Then I went back home on my parents' bike. When I got back home my parents asked me if I wanted to have dinner but I refused and went to bed. I did not tell my parents anything [about what had happened to me] that evening or the next day. The next day when I was at school my mother and Tomo came to take me out of school. My mother took me to the police station to make a statement about what had happened at Tomo's. I told the police that Tomo had touched me because that was what had really happened. I attend fifth grade of a special school and am a very good pupil. I cannot read or write but I can count to ten. At first I did not tell my parents what happened at Tomo's, because I was afraid of them and I did not dare tell them about it.”
It was also noted that contact with M.V. had been established with difficulty.
6.  On 29 November 2002 the Bjelovar State Attorney's Office (Općinsko državno odvjetništvo Bjelovar) filed a bill of indictment against the applicant charging him with an act of indecency against a minor (bludna radnja).
7.  On an unspecified date the trial against the applicant opened before the Virovitica Municipal Court (Općinski sud u Virovitici). On 25 February 2003 the trial judge asked for a psychiatrist's opinion on M.V.'s mental health and development. The report, submitted on 10 March 2003, reads, inter alia, as follows:
“...[M.V.] is joyful and curious, she touches everything and asks a lot of questions, as a child would. She strongly deviates from the standard behaviour for a child of her age. Physically she is healthy. When asked a direct question about her age, she answers: 'Twelve, I don't really know, give me that pencil, this watch, a telephone.' She does not know the days of the week, she cannot count, does not know the alphabet, and writes her name with difficulty, automatically, without understanding what she is doing. She can't tell the time. She knows her parents' address. She likes to play with the telephone.
She has difficulty talking about the event in question, as she remembers only parts of it. She just repeats that Tomo Kovač shouted at her and hit her with a wooden spoon, with which he also hit his child.”
8.  The trial court held a hearing on 22 April 2003. In his defence before the trial court the applicant denied the charges. M.V. was also summoned. It was then recorded, in the presence of the applicant, a psychologist and a deputy state attorney, that M.V. upheld the statement she had made before the investigating judge. This statement was not read out. M.V. added that on the afternoon she had gone to the Kovač residence. Nobody, including Franjo and Tomo Kovač, had given her any money. The deputy state attorney then asked that M.V. be questioned without the applicant being present. The request was granted and the applicant was removed from the courtroom. The applicant, still unrepresented, had not had the opportunity to prepare any questions for the witness beforehand. The transcript of M.V.'s further statement, made in the applicant's absence, reads as follows:
“I am afraid of Tomo Kovač because he attacks me all the time and tells me to go to see his father. This morning, before the hearing, he threatened to beat me up on my way back home from the court. That is all I have to say.”
This statement was then read to the applicant who denied having threatened M.V. and said that he had not even seen her that morning before he arrived at the court. The psychologist present stated that the applicant's intellectual level corresponded to that of an average child of five years and four months.
9.  The court also heard evidence from the applicant's partner who stated that M.V. had said that she had been naked with the applicant's father in his workshop before coming to the house. Other witnesses were also heard, none of whom had seen the alleged acts and who gave evidence only on the subsequent events.
10.  In its judgment of 22 April 2003, the Virovitica Municipal Court convicted the applicant of an act of indecency against a minor and sentenced him to six months' imprisonment. It based the applicant's conviction to a decisive degree on the statement made by M.V. before the investigating judge. The relevant part of judgment reads as follows:
“The victim gave a detailed statement of the episode with the defendant, alleging that the defendant had forced her to go into a bedroom, hitting her on her body with a wooden spoon with which he had also hit his partner, and that once in the bedroom, in a state of excitement, he had told her to take off her clothes and touched her with his hands on the upper and lower parts of her body. He had then ordered her to put her clothes back on and warned her not to tell anyone about what had happened.
Psychological tests on the victim were carried out a year after the above-mentioned event. In the interview with the psychologist the victim made it clear that the subject of their conversation was the incident when the defendant had touched her body.
Bearing in mind the consistency of the victim's testimony and that, according to the psychiatrist's report submitted, she had not been able to resist the defendant due to the fact that she was mentally challenged, it can be concluded that the defendant had acted against the victim in the manner described in the indictment.”
11.  In his subsequent appeal the applicant, now represented by defence counsel, denied the charges against him and also complained that he had not been given an opportunity to question M.V. In particular, he argued that M.V.'s testimony should have been given in a separate room and tape-recorded so that he could have had the opportunity to hear it. He further pointed out that the transcript of the statement she made before the investigating judge could not possibly correspond to what she had actually said, because the language used in the transcript did not resemble that of a mentally challenged girl who, at the age of 12, could not read or write and did not know the names of any of her teachers. The applicant also complained that due to his poor education he had not been able to protect his own interests and that therefore a lawyer had to be appointed to him from the very beginning of the proceedings.
12.  On 26 June 2003 the Virovitica County Court dismissed the appeal. As to the applicant's objection in respect of the language attributed to M.V., the County Court accepted that the wording of her testimony had been formulated by the investigating judge and that the testimony would have sounded more convincing had it reproduced M.V.'s own words. However, the court found that this shortcoming did not amount to a significant procedural defect. The appellate court made no comments on the applicant's complaint concerning his lack of opportunity to question M.V, and concentrated mainly on the question of M.V.'s reliability as a witness. The relevant part of the appellate court's judgment reads as follows:
“... Bearing in mind the provision of Article 191 of the Code of Criminal Procedure (Official Gazette no. 58/2002), the defendant's argument that at the main hearing held on 22 April 2003 the victim should have given testimony in accordance with the rules laid down in Article 238 para. 5 of the Code of Criminal Procedure and Section 119 of the Act on the Juvenile Courts (Official Gazette no. 11/1997 with further amendments) – that is, in a separate room and video recorded – is well founded. However, this method of questioning a witness is prescribed only for the purposes of protecting the witnesses themselves and is not a prerequisite for the testimony to be valid. Therefore, such a procedural error did not and could not have any effect on the [first-instance] judgment.
Contrary to the arguments in the appeal, the factual background has been adequately and thoroughly established in the impugned judgment. The first-instance court was right in trusting the consistent testimony of the victim on the basis of which it established the relevant facts in the proceedings.”
13.  On 30 July 2003 the applicant lodged a request for extraordinary review of a final judgment (zahtjev za izvanredno preispitivanje pravomoćne presude) with the Supreme Court (Vrhovni sud Republike Hrvatske) whereby he argued that his right to a defence had been violated during the trial because he had not been allowed to question M.V. On 15 January 2004 the court dismissed the applicant's request finding as follows:
“The case-file shows that ... the defendant had been temporarily removed from the courtroom during the testimony of the victim, M.V. However, upon his return to the courtroom he was informed about the content of her statement and was able to give his objections and ask questions. For these reasons, temporary removal of the applicant from the courtroom did not violate his defence rights at the hearing”
14.  The applicant then lodged a constitutional complaint against the Supreme Court's decision whereby he claimed that his right to examine or have examined a witness against him had been violated, reiterating his previous arguments.
15.  On 28 May 2004 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the complaint inadmissible on the ground that it did not concern the merits of the case. The decision was served on the applicant's counsel on 24 June 2004.